Most people are aware that the Michigan legal system uses bail requirements to bolster public safety and ensure that criminal defendants make their court dates. But they may not know how it perpetuates inequalities in the system, keeping legally innocent people behind bars because they can’t make bail.

Violent criminals pay bail and walk free every day, while some people accused of less serious crimes — and who may, in fact, be innocent — are detained because they can’t afford to pay bail. The solution to this inequity is not to abolish bail. We can use it to bolster public safety, but the amount of cash a defendant has on hand is not the key factor in achieving that. If a defendant is a danger to himself or others, incarcerate him. If he isn’t, make it possible for him to go free – whether by setting a manageable bail sum, or, as other jurisdictions have done, requiring none at all.

Here’s how the cash bail system works. Someone who is accused of a crime appears before a judge to be formally charged and apprised of their rights. Defendants who are charged with the most serious crimes, or committed a violent felony while on probation or parole, or who have prior violent felony convictions are incarcerated until their trial. But almost everyone else is entitled to some kind of bail unless the judge finds them a danger to society. Many people are judged safe to release, but are nevertheless stuck in jail because they can’t come up with the hundreds or even thousands of dollars required.

Many Michiganders, myself included, do have access to that kind of money, either because we have savings or because we know someone who would be willing and able to give it to us. We might find the requirement frustrating or difficult, but we would pay the money and retain our jobs and, most importantly, the income we’d need to pay a lawyer and participate in the preparation of our defense. But many other people have no access to even a few hundred dollars. They face the possible loss of their job and housing, as well as custody of their children. On top of this, they must deal with the difficulty of coordinating with a defense attorney while stuck in the local jail. Remember, this can happen to someone who has been not been convicted of anything, and indeed, has been judged safe to release.

This system needs to change so that it does a better job of doing what we want it do. We must tie the bail decision closely to real factors that matter to public safety and ensure that the ability to pay is never the sole reason an otherwise eligible defendant is incarcerated. We should start gathering data about this practice so that we can observe its effectiveness and improve it further. There are no one-size-fits-all decisions when it comes to incarceration. Customizing bail decisions to the circumstances of the defendant is an important reform, and policymakers should actively work to protect the rights of the innocent and save taxpayers the very expensive bill for needlessly incarcerating people who have not been convicted of a crime.

Permission to reprint this blog post in whole or in part is hereby granted, provided that the author (or authors) and the Mackinac Center for Public Policy are properly cited.